Hamilton v. Vasquez

• Decision Date: 03 February 1994
• Docket Number: 91-56403,91-56252,91-80385 and 93-55039,Nos. 91-56251,91-56295,s. 91-56251
• Citation: 17 F.3d 1149
• Parties: Bernard Lee HAMILTON, Petitioner-Appellant, v. Daniel VASQUEZ, Warden of San Quentin; The Attorney General of the State of California, Respondents-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1149

17 F.3d 1149

Bernard Lee HAMILTON, Petitioner-Appellant, v. Daniel VASQUEZ, Warden of San Quentin; The Attorney General

of the State of California, Respondents-Appellees.

Nos. 91-56251, 91-56252, 91-56295, 91-56403, 91-80385 and 93-55039.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 15, 1992.

Decided Feb. 3, 1994.

As Amended on Denial of Rehearing;

Suggestion for Rehearing En Banc

Rejected March 22, 1994.

Peter H. Benzian, Latham & Watkins, San Diego, California and Richard C. Camino, Tustin, California, for the petitioner-appellant.

Pat Zaharopoulos, Assistant Attorney General, San Diego, California, for the respondents-appellees.

Appeal from the United States District Court for the Southern District of California.

Before: SCHROEDER, FLETCHER and TROTT, Circuit Judges.

SCHROEDER, Circuit Judge:

Bernard Hamilton, a California state prisoner sentenced to death, appeals the district court's denial of his 28 U.S.C. Sec. 2254 habeas petition. The case arises from Hamilton's conviction in San Diego County Superior Court for first degree murder, burglary, robbery and kidnapping in violation of Cal.Penal Code Secs. 187, 459, 211, 207, and his sentence to death. He also appeals from the denial of his Rule 60(b) motion asking the district court to consider, as part of his original petition for habeas relief, claims that he had failed to exhaust during the pendency of the habeas petition. We affirm the district court's denial of the Rule 60(b) motion and the denial of relief on the merits on those claims going to the validity of the underlying convictions. We hold that Hamilton is entitled to relief only with respect to the penalty phase of the state court proceedings, because on the basis of the confusing instruction given, the jury could not have made a reasoned and informed choice between a death sentence and a life sentence without possibility of parole.

The factual circumstances of this case are set out at length in People v. Hamilton, 41 Cal.3d 408, 221 Cal.Rptr. 902, 710 P.2d 981 (1985), vacated, California v. Hamilton, 478 U.S. 1017, 106 S.Ct. 3328, 92 L.Ed.2d 734 (1986) (Hamilton I ), and People v. Hamilton, 45 Cal.3d 351, 247 Cal.Rptr. 31, 753 P.2d 1109 (1988), cert. denied, 488 U.S. 1047, 109 S.Ct. 879, 102 L.Ed.2d 1002 (1989) (Hamilton II ). Hamilton's convictions arise from the death of Eleanore Frances Buchanan. Mrs. Buchanan's body was discovered near San Diego, California, on May 31, 1979. The body's head and hands were missing. Two strings of white cord were tied to her ankles, blue fibers were stuck to her body and tie marks were present on her wrists. There were stab marks in her abdomen and evidence showed that her head and hands were removed by use of both a knife and a saw.

On the day of her disappearance, Mrs. Buchanan left her home driving the family's blue van in order to attend class at Mesa College. Her husband testified that she was wearing tan Levis, a brown and beige shirt, and carrying a brown purse. Mrs. Buchanan attended class and was last seen alive at about 9:30 p.m. as she walked toward the school parking lot.

Bernard Hamilton was stopped while traveling in a blue van in Oklahoma on June 8, 1979. When the police checked the vehicle identification number, they learned that the van belonged to Mrs. Buchanan. Hamilton was arrested. During the preceding week, Hamilton had used the Buchanans' credit cards to buy food, gas and other items, including a saw, a screwdriver and a set of wrenches, a butcher knife and twine. Blood on the floor of the van and blood on Hamilton's shoe matched the blood type of the victim.

San Diego police interviewed Hamilton in Oklahoma on the day after his arrest. Hamilton waived his Miranda rights and told the police that he had traveled from San Diego with "Fran" (Mrs. Buchanan's nickname) and "Spider," Calvin Spencer. He said that Mrs. Buchanan had left her husband for Spider, and that the two departed for Louisiana, leaving Hamilton with the van and credit cards. Hamilton identified Mrs. Buchanan from a picture and stated that when he saw her she was wearing "light colored jeans and carrying a beige non-leather purse."

At trial, the prosecution presented evidence that Hamilton had called Donna Hatch in Terrell, Texas on May 31, 1979 from his parents' home in San Diego. He told Hatch that he would leave for Texas in a van when the gas station opened in the morning. Hamilton used the Buchanans' credit card to buy gas between 4:45 a.m. and 10:15 a.m. on May 31, 1979. He also bought gas later in the day in El Centro, California and in Tucson, Arizona. Hamilton arrived in Terrell on June 1. Hatch's testimony was that when the van arrived, it was dirty, and the arm of the driver's chair, the mirror and the window on the passenger side were broken. Hatch stated that she saw credit cards in the names of Terry and Eleanore Buchanan in the van. Hatch also testified that she heard Hamilton call his brother and tell him that he had flown to Texas. Hamilton told Donna that he "thought he had killed a man but he did not want to tell her any details because she might not want to have anything to do with him if he told her." Hamilton I, 221 Cal.Rptr. at 905, 710 P.2d at 984.

At trial an inmate at the San Diego jail, Steven Thomas, testified that he had spoken with Hamilton, who said "well I did it but they'll never prove it." Id. at 906, 710 P.2d at 985. When Hamilton was transported to the courtroom on August 21, 1979, he apparently told Sheriff Parsons: "alright, you have your fun, I'll have mine later." The Deputy responded, "I thought you already had your fun." Hamilton responded, "Yea, and I'll kill a lot more, too, and you may be first on my list." Id. at 906, 710 P.2d at 985.

Hamilton testified at trial that he had never seen the victim. He stated that he found the van parked on a street between 12:45 and 1:00 a.m. on May 31. The keys were in the ignition and he drove the van home, called Hatch and left for Texas later that morning. He testified that he invented the story about spending time with Spider and Fran so that he would not be charged with theft of the van. He denied the threats to Donna Hatch. He explained that he bought the saw and other knives in order to rob a store in Texas.

Hamilton was convicted of first degree murder, burglary, robbery and kidnapping. He was sentenced to death on March 2, 1981. The California Supreme Court, on appeal, affirmed the conviction as to Hamilton's guilt but reversed his death sentence. See People v. Hamilton, 41 Cal.3d 408, 221 Cal.Rptr. 902, 710 P.2d 981 (1985). In upholding the conviction, the court ruled that there was no error in the trial court's denial of Hamilton's motion to proceed in pro per. The court also upheld the trial court's decision to shackle Hamilton during trial. The court agreed with Hamilton that it was error to allow into evidence letters that he had written while in jail on an earlier conviction. Id., 221 Cal.Rptr. at 913, 710 P.2d at 992. However, the court ruled that the evidence was not prejudicial, and refused to overturn the conviction. The court upheld the admission into evidence of another letter, written by Hamilton to Theresa Roch, which threatened the defense attorney, prosecutor and witnesses in his murder trial. The court upheld the admission of Hamilton's statement to Sheriff Parsons. It also affirmed the admission into evidence of the saw, knife and twine that Hamilton purchased. The court ruled that any error in the admission of Steven Thomas's testimony was harmless beyond a reasonable doubt.

With respect to his death sentence, Hamilton argued that the special circumstance finding should be set aside and the death penalty reversed due to error under Carlos v. Superior Court, 35 Cal.3d 131, 197 Cal.Rptr. 79, 672 P.2d 862 (1983), because the court did not instruct the jury on the necessity for intent to kill in the felony-murder special circumstance. The Supreme Court agreed, and set aside the finding of the special circumstance, reversed the death penalty but affirmed on all other grounds.

Hamilton I was vacated by the Supreme Court, California v. Hamilton, 478 U.S. 1017, 106 S.Ct. 3328, 92 L.Ed.2d 734 (1986), for consideration in light of Rose v. Clark, 478 U.S. 570, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986). On remand, in Hamilton II, the California Supreme Court upheld the special circumstance finding and the sentence of death. People v. Hamilton, 45 Cal.3d 351, 247 Cal.Rptr. 31, 753 P.2d 1109 (1988), cert. denied, 488 U.S. 1047, 109 S.Ct. 879, 102 L.Ed.2d 1002 (1989).

Hamilton thereafter filed a petition in district court, pro se, setting forth exhausted claims. Hamilton contended that shackling his hands and legs at trial was unconstitutional (1 CR 1). The district court dismissed the petition without reviewing the state court record. On appeal, this court reversed the judgment of the district court and remanded the case, instructing the district court to examine the entire trial court record and conduct an evidentiary hearing if necessary. Hamilton v. Vasquez, 882 F.2d 1469, 1473 (9th Cir.1989). We also directed the appointment of counsel.

Hamilton filed three more petitions, two of which were dismissed, and one of which was consolidated with the pending petition (SER 8; ER 210). On March 6, 1990, the district court ordered Hamilton to identify, within 90 days, all additional claims to be raised on habeas corpus (ER 207-08). Hamilton identified 38 claims, the majority of which were unexhausted (id. at 245-256). On June 21, 1990, following Judge Alarcon's concurring opinion in Neuschafer v. Whitley, 860 F.2d 1470, 1482 (9th Cir.1988), cert. denied, 493 U.S. 906, 110 S.Ct. 264, 107 L.Ed.2d 214 (1989) (Alarcon, J., concurring), the district court ordered Hamilton to file all the unexhausted claims in state court, or amend the petition to contain only exhausted claims, by August 8, 1990 (id. at 211). On September 18, 1990...